Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2017 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (2) TMI 415 - HC - Indian LawsAcquittal of the petitioner in the complaint case u/s 138 of the Negotiable Instrument Act - default for want of prosecution - Held that:- The acquittal of the petitioner accused in the complaint case under Section 138 of the NI Act was a result of nonappearance of the plaintiff and by resort to Section 256 of the Code. There was no determination, one way or another, of any issue of fact or law by the learned Magistrate, and there was no trial by the learned Magistrate in the said complaint case. No finding or decision was rendered- either on facts, or in law by the learned Magistrate who had acquitted the accused. The result of such acquittal, by force of Section 300(1), would be that “while such … … … acquittal remains in force”, the petitioner accused shall not be liable to be tried again for the same offence, namely the offence under Section 138 of the NI Act in relation to the dishonour of the cheque(s) which formed the basis of the complaint. In my view, the further prohibition against the accused being tried on the same facts for any other offence would not apply to this fact situation. The relevant words “nor on the same facts … … …” clearly show that for latter part of Section 300(1) to apply, the “same facts” should have been tried and determined in the earlier trial conducted for any other offence. Though the accused may have been technically “acquitted” in respect of one of such complaints, there would be no determination of any issue of fact, or law, since no trial had taken place determining any issue of fact, or law. However, if one of such complaints were to result in an acquittal after a trial, the findings returned by the Court in its decision “would constitute estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/ reception of evidence to disturb the findings of fact when the accused is tried subsequently for a difference offence”. Since the “trial” in the complaint case under section 138 of the NI Act had not taken place, there would be no question of the petitioner accused being “tried again”. In the present case, the learned Judicial Magistrate, Gurugram, was dealing with the complaint of the complainant u/s 138 of Negotiable Instrument Act. Merely because in the said complaint, the facts which constitute offences u/s 406/420 IPC may have been laid out, it does not follow that the Magistrate was obliged to take cognizance of the said offences and he having failed to do so, the FIR in question could not have been registered against the accused. Thus, even if the petitioner was tried in respect of one of the charges, namely, u/s 138 of Negotiable Instrument Act, and even if he is taken to have been acquitted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not made.
|